RS Referendum Marred by Lack of Legal and Procedural Clarity

A referendum on the national holiday of the Republika Srpska (RS) on Sunday (September 25) appears set to go ahead even though Bosnia and Herzegovina’s Constitutional Court declared the exercise, as well as the holiday, to be unconstitutional, and even while political maneuverings in Banja Luka continue in parallel.

Let’s set aside for the moment the big-picture aspects of the RS referendum – its direct assault on the constitutional order, rule of law, and the Dayton system - to look more at some micro-level, operational details.

At minimum these “technical” issues should raise serious concerns about the conduct of the referendum and the legitimacy of any results. At the same time, they demonstrate the failure of BiH’s Central Election Commission and other institutions to determine how to regulate these matters 6 years after the RS adopted the Law on Referendum and Citizens Initiative in 2010.

It also underscores the sheer folly of the European Union praising BiH’s democratic, social, and economic progress just days before this exercise is supposed to take place. (On September 20 the EU’s member states asked the European Commission to assess BiH’s membership application, welcoming “the meaningful progress in the implementation of the Reform Agenda.”)

The following issues deserve serious consideration if democratic process and the rule of law are to have any credibility, on September 25 or any other day.

Who Can Participate?

One issue of concern are electoral rolls, and more precisely who is permitted to participate in the exercise and under what conditions.

The data from the BiH 2013 census, released this summer, enumerated 1,228,423 human beings in the RS. This includes all children/minors, as well as adults. The census data broken down by age in the RS reflects a total of 218,477 persons from the age of 0-17 years. That means there are 1,009,946 persons who are 18 or older, and therefore potentially eligible to vote. More than 200,000 people on the electoral roll seem to be missing from the census data – even assuming that every single adult over the age of 18 in the RS is indeed registered as an active voter.

How to explain this discrepancy? There are various possibilities.

One could consider diaspora voters who may remain on the voter list but who were not present during the census enumeration period.

One could in addition consider people living in Brčko but registered as RS citizens and therefore eligible to vote in the RS. The census data shows a total of 67,081 people over the age of 18 in Brčko. As the question regarding one’s entity citizenship was neither provided for in the census law, nor mandatory, data on this statistic were not released. But in any case, even if one would liberally assume that half of the total number of people enumerated in Brčko are actively included on the RS voter list, that would not explain the difference.

One might also point to the success of past voter registration efforts, such as the Glasacu za Srebrenicu/Prvi Mart efforts. Notably, Bosnian Serbs residing in neighboring Serbia are also seemingly registered and eligible to vote in BiH polls. Serb mayoral candidate in the 2016 local elections in Srebrenica, Mladen Grujičić, has called all Serbs from Srebrenica living in Serbia to come to Srebrenica and vote in the referendum, as well as at the elections. He said that the “local elections are a certain kind of a referendum, because we’re choosing if we’re going to move out of here or start living better”.

And one can also simply blame sloppy voter registers, despite two decades of efforts to develop a transparent, free and fair election system.

How do People Participate?

In addition to the question of electoral rolls, there is the issue of how people who want to participate in the referendum can do so.

It was well publicized that local commissions were established, and funds allocated to pay commission members. Measures were also taken to ensure that residents in Brčko District who have opted for RS citizenship, but who will not be able to participate in the exercise in the District due to the Supervisor’s decision, will be bussed to nearby locations such as Bijeljina and Donji Žabar.

In addition to the RS, the following locations abroad have been advertised as having voting stations available for the referendum:

From the information available, some of these locations are RS representation offices, which are unofficial offices with no diplomatic status. Most of the rest are Serb cultural clubs. The RS representation offices seem to be organizing the process in all locations. But what is the legal status of diaspora voting in RS offices abroad? What is the legal status of diaspora voting taking place in cultural clubs, at least part of them registered as non-profit organizations? How is the process conducted, monitored, and verified? What means exist to prevent fraud? What are the requirements of ID provision, checking, monitoring, etc.? Even if one allows that the referendum is symbolic, and at best advisory, these are procedural issues that have not been addressed by relevant laws in BiH or the RS.

Of more concern, particularly on the ground in BiH: what are the security plans for locations identified as potentially sensitive? Have any security analyses or measures even been considered or formally prepared, in cooperation with local but also higher-level security agencies? Has EUFOR undertaken contingency planning?

Outreach

Some will note that the ad hoc nature of all of this testifies to the exercise having only symbolic value. Yet, public money is being spent to generate this electoral campaign, as well as administer the vote, in an immediate pre-election environment campaigning for local elections (to be held on October 2). Are laws on political party financing or elements of the BiH Election Law being breached?

Even more troubling is the impact on the sense of popular security – the “safe and secure environment” called for in Dayton’s Annex 1A. This perception that the referendum is to do with public security is being stoked in both entities by the formal and informal outreach and outright propaganda being conducted by and on behalf of the RS authorities. The “RS Needs You” campaign includes an emotive video which appeals to Serb collectivism, declaring the vote to be about the defense of Republika Srpska’s very existence rather than an exercise on a holiday. Black and white images from the recent war in this spot are deployed as totems of collective Serb suffering, while at the same time lacking any reflection on the war, its conduct and aftermath.The advertised broadcasting of the film, “The Battle of Kosovo” on September 24 on channel RTRS is another blatant attempt to link historical sense of victimization and current political motivations.

Social media from domestic and foreign sources is again proven to be the fastest and most efficient way to spread information, some true and some exhibiting varying degrees of truth or outright falsehoods. Apart from several hashtags trending on Twitter, various media outlets have, through their social media handles reported on the referendum in RS. (These could form the basis for a separate review on its own.) As the discussion online heats up, there are also alleged statements from Dževad Galijašević saying that the “Americans and Bakir Izetbegović are preparing devastating terrorist activities in RS on the day of the referendum”. Overall, there are mixed feelings and reactions from social media users, varying from full support for the referendum, to full disagreement and condemnation of the extremely nationalist rhetoric and not subtle suggestions of possible violent conflict.

In sum, regardless of the damaging impact this exercise has already had on political discourse and the already fraying social fabric, we are witnessing an exercise in which an election-like process is being implemented and abused in a legal and procedural vacuum. These consequences will be felt long after the September 25 exercise, as they point to a textbook case of the flouting of the rule of law in BiH for narrow political gains.